High Court of KeralaDivision Bench2017-11-30Appeal partly allowed; enhanced compensation aw...

U.G. Suresh v. Mohanan U.G., Mahesh & National Insurance Co. Ltd.

Case / Petition Number:MACA.No.1803 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.K.Abdul Rehim
K.P.Jyothindranath
Judgment Date: 2017-11-30
Court Decision / Holding: Appeal partly allowed. The 15% contributory negligence finding is set aside for lack of positive evidence of contributory involvement by carrying two pillion riders. The appellant’s income is increased to Rs.5,000 per month (notional), and disability is re-assessed at 10%. The Tribunal’s compensation is enhanced with additional heads: loss of earnings, extra nourishment, clothing, and pain and suffering, resulting in an additional Rs.85,600. The appellant is entitled to the entire compensation assessed by the Tribunal plus the additional amount; the insurer is to deposit the enhanced sum within two months from receipt of a copy of this judgment. Costs are disallowed.
Final Disposition: Appeal partly allowed; enhanced compensation awarded to the appellant with directions to deposit by insurer; no costs.

Parties to the Case

Appellants / Petitioners

U.G. Suresh s/o Late Gopaln

Respondents

Mohanan U.G. s/o Gopaln U.G.
Mahesh s/o Mohanan U.G.
National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• SRI.P.V.CHANDRA MOHAN

Counsels for Respondents

• SRI.RAJESH THOMAS

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA no. 1803 of 2013) arising from an award under OPMV 2942/2006 of the MACT, Thrissur (2006) in which the claimant was injured as a pillion rider on KL 8/W 8988 after a February 24, 2005 accident. The appellant challenges the Tribunal’s quantum and the finding of 15% contributory negligence. The High Court holds that there is no positive evidence that the two pillion riders contributed to the accident; relying on Binoj Antony and New India Assurance Co. v. Pazhaniammal, it distinguishes the earlier Pournami decision that had guided the Tribunal to impose 15% contributory negligence. The court notes the appellant is a driver by profession with evidence of income and a 15% disability, but finds the Tribunal’s disability assessment and some heads of compensation to be inadequate. Citing Ramachandrappa (2011), the court accepts a higher notional income of Rs.5,000 per month given the driver’s occupation and the accident year (2005). It recalculates amounts for loss of earnings, extra nourishment, clothing, and pain and suffering, and awards an additional Rs.85,600 as enhanced compensation. The insurer is directed to deposit the enhanced amount within two months; costs are denied. The judgment sets aside the 15% contributory negligence finding and grants the appellant the total compensation assessed, including the additional award.

Legal Doctrines & Maxims

Two pillion riders do not automatically establish contributory negligence without positive evidence (Pournami v. Sandhya Sudheer)
Police charge is a prima facie indication of negligence (New India Assurance Co. Ltd. v. Pazhaniammal)
Notional monthly income principle for determining compensation (Ramachandrappa v. Royal Sundaram)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the Tribunal erred in holding 15% contributory negligence for carrying two pillion riders on the motor cycle; there was no positive evidence showing that the extra pillion riding contributed to the accident. He urged that the claimant’s income should be taken at Rs.5,000 per month (not merely Rs.4,500) in line with Ramachandrappa for a qualified driver, and that disability at 10% and associated heads (loss of earnings, nourishment, pain and suffering, amenities) require re-assessment. He sought full compensation as per the Tribunal’s assessment and allowance of further enhancements.

Contentions of Respondents

The respondents contended that contributory negligence should be pegged to the two pillion riders, citing the Tribunal’s reliance on Pournami v. Sandhya Sudheer and other authorities indicating that extra passengers could imply fault; they pressed for maintaining the Tribunal’s calculated quantum and a 15% deduction, arguing that the valuation of income and disability should remain within the original Tribunal framework.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Pournami v. Sandhya Sudheer	2008 (4) KLT 817	Distinguished	The court notes that merely two pillion riders do not automatically create contributory negligence; positive evidence is required to show actual contributory influence.
Binoj Antony v. New India Assurance Co. Ltd.	2014 (1) KLT 393	Positive	The court follows this decision to reject automatic 15% contributory negligence based on the mere presence of two pillion riders; positive evidence is required.
New India Assurance Co.Ltd. v. Pazhaniammal	2011 (3) KLT 648	Positive	Cited for the proposition that police charges can be treated as prima facie evidence of negligence, though not conclusive.
Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.	(2011) 13 SCC 236	Positive	Notional income principle applied to assess compensation for a driver; supports raising the notional monthly income to Rs.5,000.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against U.G. Suresh v. Mohanan U.G., Mahesh & National Insurance Co. Ltd. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 30TH DAY OF NOVEMBER 2017/9TH AGRAHAYANA, 1939** **MACA.No. 1803 of 2013 () -------------------------** **AGAINST THE AWARD IN OPMV 2942/2006 of MACT,THRISSUR DATED 19-03-2013** ## **APPELLANT/PETITIONER** **------------** **U.G. SURESH S/O LATE GOPALAN OOTUMADATHIL HOUSE P.O. PULLAZHI THRISSUR DISTRICT** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** **--------------** **1. MOHANAN U.G. S/O GOPALAN OOTTUMADATHIL HOUSE PUTHURKKARA, AYYANTHOLE THRISSUR DISTRICT 680 003** **2. MAHESH, S/0 MOHANAN U.G. OOTTUMADATHIL HOUSE PUTHURKKARA, AYYANTHOLE PIN 680003** **3. NATIONAL INSURANCE CO. LTD. VIGNESWARA BUILDINGS NEAR OVER BRIDGE B7, PUDUKKOTAI ROAD THIRUCHIRAPPILLY PIN 680 856** **R3 BY ADV. SRI.RAJESH THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - **M.A.C.A.No.1803 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of November, 2017 ## **JUDGMENT** ## Jyothindranath, J. In this appeal the challenge is against the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV)No.2942/2006. The injured/claimant is the appellant. The facts necessary for consideration of this appeal is as follows : A motor vehicle accident occurred on 24.2.2005 while the appellant was travelling as pillion rider on a motor cycle bearing Reg.No.KL 8/W 8988. The vehicle capsized and the appellant sustained injuries. Alleging negligence on the side of the rider, he moved a claim petition arraying the owner, rider and insurer of the motor bike as respondents 1 to 3. The dispute is only regarding the quantum of compensation. M.A.C.A.No.1803/2013 2 2. The first point argued by the learned counsel for the appellant is regarding contributory negligence. It is the finding of the Tribunal that as there were two pillion riders travelling on the motor cycle, following the dictum laid down in **Pournami v. Sandhya Sudheer ( 2008 (4) KLT 817),** the Tribunal adopted 15% contributory negligence on the side of the pillion rider. This is under challenge. Surely in **Binoj Antony v. New India Assurance Company Ltd. ( 2014 (1) KLT 393)** it is held that the mere fact that a motor cycle was carrying two pillion riders cannot ipso facto give rise to an inference of contributory negligence, unless it is positively proved that such carrying of two pillion riders actually contributed to the accident. It is relevant to make mention of the decision of this court in **New India Assurance Co.Ltd. v. Pazhaniammal ( 2011 (3) KLT 648)** wherein it is held by this court that the police charge is a prima facie indication of negligence on the side of the driver of the vehicle against whom the charge was M.A.C.A.No.1803/2013 3 filed by the Police. Thus what comes out is that there should be positive evidence to show that the over loading/travelling of two pillion riders on the motor bike was the cause of accident or actually it contributed towards the accident. If such evidence is not forth coming, it cannot be held that only because there were two pillion riders, there was contributory negligence. In this case, there is nothing to show that the travelling of two pillion riders has actually contributed towards the accident. No evidence was adduced by the respondents to show that the travelling of two pillion riders was in any way contributed to the accident. No document produced or no oral evidence adduced by the respondents. Under such circumstances the finding of the lower court that there was 15% contributory negligence on the side of the appellant/claimant is hereby set aside and the appellant will be entitled for the entire compensation assessed by the Tribunal as well as the additional compensation if any granted by this court M.A.C.A.No.1803/2013 4 through this judgment. 3. The case of the appellant is that he was a bus driver by profession and was earning a monthly income of Rs.5,000/-. To substantiate his case, he produced a salary certificate as well as the copy of the driving licence. It is the submission of the learned counsel that even a copy of the RC was produced before the Tribunal to show the bonafide of his contention. Even though these documents were produced, the Tribunal considered only a monthly income of Rs.4,500/-. We feel that the monthly income considered is slightly on the lower side. Even in the case of a coolie who met with an accident in the year 2004, the Apex Court fixed a notional monthly income of Rs.4,500/- in ## **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.** **[( 2011) 13 SCC 236]** . Since the fact that he is a qualified driver is seen proved and as the accident occurred in this case in 2005, we feel that the claim of the appellant that he was earning Rs.5,000/- M.A.C.A.No.1803/2013 5 per month can be accepted for assessment purpose. 4. Another aspect brought to our notice is that even though he sustained a disability of 15%, only a nominal percentage of 4% was considered by the Tribunal for assessment purpose. It is the submission that the percentage of disability considered by the Tribunal is on a lower side. On a perusal of the award, it can be seen that he sustained communited fracture of zygoma left and also fracture of orbital wall. There was also other injuries on the body. Since it is a case of head injury and further keeping in mind that the orbital wall was fractured and also as per the disability certificate, the injury was involvement of V[th] cranial nerve and consequently there was also numbness on the left side, we feel that it will be only just and proper to consider 10% disability in this case for assessment purpose. Thus, the following reassessments are made: 5. Towards loss of earing, the appellant will be entitled for M.A.C.A.No.1803/2013 6 a compensation of Rs.25,000/- ( 5,000 x 5). After deducting the amount of Rs.13,500/- already awarded by the Tribunal, the appellant will be entitled for an additional compensation of Rs.11,500/-. Towards extra nourishment, no amount is seen awarded in this case. This being a case where there was zygoma fracture naturally there will be extra nourishment needed as at the initial time he could take only liquid food. Under such circumstances, Rs.2,500/- is awarded on this head. On the head of damage to clothing, no amount was awarded. Rs.1,000/- is awarded under this head. Towards pain and suffering, only Rs.15,000/- was awarded. As already stated, it is a case where fracture of zygoma as well as orbital was therein. Under such circumstances an additional sum of Rs.5,000/- is awarded under this head. As we have already found to consider a disability of 10%, we feel that the compensation on the head of loss of amenities is on the lower side. An additional sum of Rs.8,000/- is M.A.C.A.No.1803/2013 7 awarded on this head. On reassessing the compensation under the head of disability, the appellant will be entitled for an additional compensation of Rs.57,600/- ( 5000 x 12 x 15 x 10% - 32400). Thus, the appellant is entitled for a total additional compensation of Rs.85,600/-. The said additional compensation will carry interest at the same rate as ordered by the Tribunal, from the date of the claim petition till realization. It is also made clear that the appellant will be entitled for the entire compensation assessed by the Tribunal. The insurance company shall deposit the amount within a period of two months from the date of receipt of a copy of this judgment. There will be no orders as to costs. ## **C.K.ABDUL REHIM, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv.